Justice Derailed

A 2008 sex-abuse case lingers in federal court as a “manipulative” defendant works the system.

When someone is charged with a crime, he has a constitutional right to a lawyer. He also has the right to a speedy trial.

Once in a while, a
defendant comes along who tries to stretch the limits of those rights.
And few have done so in an Oregon courtroom quite like Andrew Franklin
Kowalczyk.

Facing federal
charges of sexual exploitation of three young girls, Kowalczyk, 39, has
for more than six years flouted prosecutors, thwarted judges and
derailed, frustrated and even frightened the lawyers appointed by the
court to represent him.

“No one can take on
the role of counsel for [Kowalczyk], because he takes steps, such as
suing them, that create irreparable conflicts,” U.S. District Judge
Michael Mosman wrote last month. “By his own actions, [Kowalczyk] has
made appointing him a lawyer impossible and repeatedly demonstrated his
intention to use such appointments as a tactical delay.”

It’s worked. Mosman
said during a hearing last year that Kowalczyk’s “manipulative history”
has created one of the longest pending criminal cases he’s seen in his
18 years on the bench.

Kowalczyk’s trial
date has been postponed 13 times. Kowalczyk says he can’t afford his own
attorney, and his defense lawyers alone have so far cost taxpayers
$382,000. That’s about the cost of paying for the defense in a
death-penalty case.

The most serious
federal sex-offense cases take an average of less than nine months to
adjudicate, according to court statistics. Even a typical federal
terrorism case takes at most 22 months. Kowalczyk’s charges have been
pending more than three times that long.

The oddity of
Kowalczyk’s case has created difficult legal issues for federal judges
weighing his actions and the U.S. attorneys trying to convict him: When
does a defendant waive his right to a lawyer, a speedy trial or both?

Mosman ruled last
year that Kowalczyk had lost his right to a lawyer only after he fired
his eighth lawyer. The judge later appointed a ninth lawyer, who has
since left the case.

“The right to counsel
is a fundamental constitutional principle,” says Caroline Davidson, an
assistant professor at Willamette University College of Law. “Most
courts would not do it lightly.”

But the delays continue, putting the government’s case against Kowalczyk at risk.

“There are victims
for whom justice is not being served,” says Gary Sussman, one of the
U.S. attorneys prosecuting the case. “There is an enormous government
resource drain, and memories fade over time. It’s more difficult to
prove a case.”

Today, Mosman is
preparing to rule whether Kowalczyk—who’s being held in the Multnomah
County jail—is mentally competent to stand trial.

Kowalczyk’s father, John, points to his son’s longhistory
of mental-health problems, and says his physical condition has worsened
while in jail. He says there is no reason his son would want to delay
his own case.

“He’s nowhere near
normal,” John Kowalczyk says. “Where he needs to be is in a mental
institution. That’s where he would get the treatment and the care that
he needs. Prison is just a death sentence for him.”

But a psychologist
for the government—and at least one of Kowalczyk’s former defense
attorneys—believes Kowalczyk has proven he’s competent to stand trial.

Andrew Kowalczyk, through his father, declined to speak to WW for this story, as did the judges, investigators and defense attorneys.

But court records in
Oregon and Washington tell the story of a case that highlights the
tension between protecting a defendant’s rights while not allowing him
to run amok in the court system—and make his alleged victims suffer even
more.

“It matters that it’s
lasted such a long time because [the victims] have to be continually
reminded of this,” says Lynn Travis, program director for Court
Appointed Special Advocates of Portland. “It’s a piece of their lives
they don’t get to put to rest.”

IN HIS OWN DEFENSE: Andrew F. Kowalczyk has been serving time in the Multnomah County Jail while his federal trial on sexual exploitation charges has been delayed more than a dozen times.

IMAGE: Multnomah County Sheriff

Andrew Kowalczyk already had a record of assault, weapons
charges and child abuse when police arrested him outside the Northwest
Motor Inn in Puyallup, Wash., two days after Christmas 2007. Hours
earlier, Kowalczyk, a Portland resident, had taken off from police during
a traffic stop and eluded them after a high-speed chase.

When officers
searched Kowalczyk’s bags, they found counterfeit $50 bills, fake ID
cards and a laptop computer. On the computer, they discovered images and
videos of a man raping and sodomizing two toddlers and a third girl who
appeared slightly older. Police decided the man in the pictures was
Kowalczyk.

According to
prosecutors, Kowalczyk allegedly raped the children in Oregon and then
took the images into Washington, making it a federal crime. He was
eventually charged with nine counts of sexual exploitation of a minor.
Because of his criminal history, a conviction could send him to prison
for life.

A judge appointed
federal public defender Francesca Freccero to the case in October 2009,
after Kowalczyk was extradited from Washington. Two months later, she
filed a three-line motion to withdraw from the case. She said a conflict
had arisen and she wanted out.

Lake
Oswego lawyer Matthew Schindler was appointed in Freccero’s place.
Schindler had represented more than 200 federal defendants by then and
was known for succeeding with difficult clients—half his cases were
hand-me-downs from other lawyers who could not handle them.

But Kowalczyk was too
much. Schindler—in a sealed declaration later made public by a
judge—said Kowalczyk made hundreds of “pointless” demands for records
and ordered him to make legal decisions that Schindler thought unwise.
Kowalczyk ordered Schindler to fire everyone on his staff. He had to
fight off a lawsuit filed by Kowalczyk’s father that accused Schindler
of defamation.

The lawsuit dragged on for two years before an appeals court judge dismissed it in January.

“I have never had to
endure anything remotely resembling what I have been through with
[Andrew] Kowalczyk,” Schindler, who lasted 10 months as his attorney,
wrote in a motion to withdraw. “He is rude, threatening and abusive.
Through his letters, he has called me incompetent, lazy, stupid, and has
repeatedly expressed his dissatisfaction with my representation.”

Schindler declined to discuss the case with WW.

Kowalczyk’s third set
of attorneys, Michael Levine and Matthew McHenry, tried twice to
withdraw from the case. U.S. District Judge Garr King approved the
motion in 2011 after they had spent five months trying to represent
Kowalczyk. Levine later suffered from heart problems that made it
difficult to continue on the case. Before that, however, he and McHenry
had already sought to separate themselves from Kowalczyk.

“To describe the
relationship between Mr. Kowalczyk and current counsels as
‘antagonistic, lacking in trust, and quarrelsome’ would be a significant
understatement,” the lawyers wrote in an appeal to the court.

That’s when Noel
Grefenson, a lawyer from Salem, took over. He was Kowalczyk’s seventh
attorney, and the trial date had been postponed six times.

Grefenson had worked
as a defense attorney for 23 years, often agreeing to represent unsavory
and challenging defendants. He stayed on even after Kowalczyk
threatened to stab him in the eye with a pencil, left a message with
legal staff saying Grefenson was playing “death-wish games,” and told
the lawyer he knew where his family lived and they would never be safe.

“The degree of my
interactions with the defendant far exceeds that of any client that I
have represented since joining the bar in 1988,” Grefenson told a judge
in 2012. “I felt it was necessary in this case.”

Grefenson knew Kowalczyk wanted to mount a new defense: that he was mentally incompetent to stand trial.

He told the court
he’d seen Kowalczyk carry out legal research and prepare complex
motions. “I have not seen anything…which leads me to suspect that the
defendant is not competent to aid and assist in his own defense,”
Grefenson told the court in October 2012.

Grefenson got off the
case after Kowalczyk filed a lawsuit and bar complaint against him.
(Both have since been dismissed.) Judge King gave Kowalczyk one more
chance, appointing veteran Clackamas lawyer Mark Cross to represent him.
If he fired Cross or sued him, King said, the court would view that as a
waiver of his right to representation. Facing the same treatment as the
other attorneys, Cross lasted six months.

The other federal judge on the case, Mosman, ruled in May
2013 that Kowalczyk had exhausted his right to a lawyer. Twice, the U.S.
9th Circuit Court of Appeals has rejected Kowalczyk’s plea for another
court-appointed attorney.

Donald True, a
Portland clinical psychologist hired by John Kowalczyk, told the court
earlier this month that Andrew Kowalczyk is unfit. John Kowalczyk tells WW
that his son hears voices, sees things that aren’t there and believes
his lawyers have been colluding with the government as part of “Satan’s
army” to put him away for life.

“It doesn’t benefit
him to stay in the Multnomah County Jail,” John Kowalczyk says. “He’s
gained nearly 200 pounds and has all kind of health issues.”

The government’s
psychologist says Kowalczyk’s insanity plea is “disingenuous” and
“contrived.” “It is clear that Mr. Kowalczyk is malingering,” clinical
psychologist Richart DeMier wrote in an evaluation last June.

After hearing
testimony earlier this month from both experts, Judge Mosman will review
the reports and rule whether Kowalczyk can stand trial.

“The legal test is
only these two main issues: Do you understand the charges against you,
and can you assist in your defense?” explains Valerie Hans, a professor
at Cornell University Law School. “If he’s filing motions without any
help, I would guess the judge would look very favorably on that.”

If a defendant is
found incompetent, Hans says, he wouldn’t be set free. “It’s not like
you’re going to a country club,” she says. “It would be a secure
facility dealing with people who have a combination of criminal activity
and mental health problems.”

The toddlers
Kowalczyk allegedly abused might not recall the crimes or be called to
testify. But they are nearly teenagers today and have been kept in limbo
by Kowalczyk’s actions.

“Seven years, 13
continuances and nine lawyers—this is appalling,” says Meg Garvin,
executive director of the National Crime Victim Law Institute at Lewis
& Clark Law School. “You can’t really grapple with the next stage of
your life when this stage is not completely over.”